United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on limited remand from
the Fourth Circuit Court of Appeals, case number 17-7015, to
determine whether Petitioner is entitled to have the appeal
period reopened pursuant to Rule 4(a)(6) of the Federal Rules
of Appellate Procedure. (Doc. No. 28).
instituted the instant civil case by filing a 28 U.S.C.
§ 2255 Motion to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. The Court denied relief on
March 31, 2017. The Court's records indicate that the
Order denying the § 2255 petition, (Doc. No. 19), and
the Clerk's Judgment, (Doc. No. 20), were served on
Petitioner by U.S. Mail on the same day they were docketed.
In a Notice of Appeal docketed on August 8, 2017, dated July
24, 2017, and post-marked August 1, 2017, Petitioner states
that he did not timely receive notice of the § 2255
Judgment “through the normal operational
procedures.” (Doc. No. 23 at 1). Petitioner asserts
that he found out about the § 2255 Judgment on July 19,
2017, after he inquired into the case status and received a
copy of the docket sheet. (Id.).
Fourth Circuit remanded for this Court to “determine
when Daniels received notice of the district court's
entry of judgment and whether he is entitled to a reopening
of the appeal period pursuant to Rule 4(a)(6).” (Doc.
No. 28 at 3).
remand, this Court ordered the Government to file a Response
and any evidence, such as prison mail logs, demonstrating why
Petitioner's Notice of Appeal should not be considered
timely pursuant to Rule 4(a)(6). (Doc. No. 29).
Government has filed a Response, (Doc. No. 30), conceding
that the prison mail log for the two months following entry
of the March 31, 2017, Judgment does not reflect
Petitioner's receipt of any mail from this Court. The
Government does not have any evidence to dispute
Petitioner's allegation that he did not receive notice of
the Court's Judgment until July 19, 2017, when he
obtained a copy of the Court's docket. The Government
concedes that an evidentiary hearing is not warranted in
light of its lack of evidence, and it further concedes that
reopening the time to appeal in this case will not result in
Federal Rules of Appellate Procedure provide:
Reopening the Time to File an Appeal. The
district court may reopen the time to file an appeal for a
period of 14 days after the date when its order to reopen is
entered, but only if all the following conditions are
(A) the court finds that the moving party did not receive
notice under Federal Rule of Civil Procedure 77(d) of the
entry of the judgment or order sought to be appealed within
21 days after entry;
(B) the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party
receives notice under Federal Rule of Civil Procedure 77(d),
whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Fed. R. Civ. P. 4(a)(6).
the Government concedes that Petitioner did not receive any
mail from this Court during the two months following entry of
the Judgment, and that it has no evidence to rebut
Petitioner's allegation that he did not receive the
Judgment until July 19, 2017, the Court finds that an
evidentiary hearing is unnecessary. The lack of any mail log
entry from the Court within the months following entry of the
§ 2255 Judgment supports Petitioner's unrebutted
claim that he did not receive a copy of the Judgment until
July 19, 2017, which the Court accepts as true.
the Court FINDS: (1) Petitioner did not
receive notice of entry of the March 31, 2017, Judgment until
more than 21 days later on July 19, 2017; (2) the Notice
Appeal is liberally construed as a Motion to Reopen which was
filed within 14 days after Petitioner received notice of the
Judgment's entry; and (3) no party would be prejudiced if
the time to file an appeal is ...